Another ‘Romeo &Juliet’ case involving two Botswana Defense Force (BDF) employees is set to go to trial in July. The two employees , Captain Letsomo and Corporal Matlhapeng are facing charges of being in involved in a ‘prohibited intimate relationship …the same conduct being prejudicial to Good Order and Military Discipline contrary to section 65 of the BDF Act Cap21:05 of Laws of Botswana back in 2013.”
When moving an application for the case to be dismissed the defense, led by Busang Manewe, argued that in terms of the old act, which was repealed earlier this year, fraternization is not an offence because there is no reference to it. He argued that while in terms of the new Act fraternization is an offence, his clients could not be charged in terms of the new Act because the said offence occurred prior to its enactment.
“It is our position that section 10 (4) of the Botswana Constitution is consistent with our common law position to the effect that there is a presumption against a retrospective application of any law.”
The defense gave the court-martial a ultimatum to either dismiss the case failing which they be allowed to seek refuge in terms of section 18 (3) of the Constitution to refer the matter to the High Court for determination.
“If in any proceedings in any subordinate court any question arises as to the contravention of any of the provisions of sections 3 to 16 (inclusive) of this
Constitution, the person presiding in that court may, and shall if any party to the proceedings so requests, refer the question to the High Court unless, in his or her opinion, the raising of the question is merely frivolous or vexatious,” section 18(3) reads.
In their response the prosecution concurred that the law does not have retrospective effect. The prosecutor argued that the fact that parliament has now decided to come up with a specific provision that deals with conduct referred to as fraternization does not mean before the enactment of the new Act (No 3 of 2018) the two employees conduct could not be punishable under any provision of the Act existing at the time the offense was committed.
“The conduct was still punishable under the repealed Act.” Following adjournment the court-martial ruled that the case go to trial on a specified date. The two accused shall appear again at the martial court in July, 2018 where they will be charged in accordance with the old BDF Act.
The particulars of the offence are that the incident happened in Mogoditshane on or about the year 2013 when the two were involved in a ‘prohibited intimate relationship’.The case is reminiscent of another case in which Lieutenant Tlhabang Thapisang and Private Kozondu Uariua were charged under the similar Policy on Fraternization and Harassment Act.